Opt-out rights need to be carefully thought through

The European Commission’s (EC) review of the Working Time Directive has reached a critical stage. Over the next few weeks, government officials from all EU member states will attempt to agree the text of a revised version of the directive prior to the next meeting of the Employment Council on 6 and 7 December 2004.

The EC hopes to reach political agreement on the text of the directive at this meeting, but this may prove difficult. The EC’s proposal for revising the text has been widely criticised by many member states, including the UK, employers’ organisations and trade unions, as well as by members of the European Parliament.

The EEF welcomes the commission’s proposal to make it easier for working time to be averaged annually and that it is not proposing – as had been feared and unions are still seeking – to remove the individual opt-out from the average 48-hour working week. However, we are very concerned about the proposed new conditions for individual opt-outs and the commission’s plans to review their retention in five years’ time.

We have serious objections to the commission’s proposal that, where unions are recognised, employers would have to reach agreements with unions about the principle of individual opt-outs before employees can sign them. Unions should not be able to veto the right for individual employees and their employer to reach agreements on working time arrangements that suit them. It must also be made clear that agreements about individual opt-outs do not have to be reached with information and consultation committees before being discussed with individuals. If this is not clarified, it could undermine our efforts to encourage employers to respond proactively to the Government’s new information and consultation legislation.

The EEF does not oppose the proposal that individual opt-outs should not be a condition of employment or be signed before employment commences. However, not allowing them to be signed during probationary periods would create practical difficulties for employers and the proposed requirement for their annual renewal creates further unnecessary bureaucracy for employers.

A better approach, which would protect individual employees and avoid practical problems for employers, is that employees should be allowed to sign an individual opt-out when they commence employment on condition that:

– they receive a written statement of their rights, from their employer, in relation to the individual opt-out before they sign the agreement. Ideally, this would be a standard document drawn up by the Government

– they are given a period of 28 days during which employees can withdraw from this agreement at any stage without having to give their employer any notice

– after this period they can, as now under the UK’s working time legislation, withdraw from this agreement at any time in the future by giving an appropriate notice period to their employer.

By David Yeandle, deputy director of employment policy at manufacturing and engineering organisation, EEF